M/s Bharat Coking Coal Limited Vs Shyam Kishore Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1009 OF 2020 (Arising out of SLP (Civil) No.20627 of 2019)

Bharat Coking Coal Ltd. & Ors. .…Appellant(s)

Versus

Shyam Kishore Singh …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

Leave granted.

2. The appellants are before this Court assailing the

order dated 19.02.2019 passed by the Division Bench of

the High Court of Jharkhand at Ranchi in LPA No.115 of

2018. Through the said order the Division Bench though

has modified the judgment and order dated 13.10.2017 of

the learned Single Judge insofar as the extent of relief

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granted, the contention of the respondent herein relating

to the change of date of birth in the service records is

accepted and a direction has been issued to the

appellants to pay the sum equivalent to salary of one

year for the period between the April, 2010 to March,

2011. The appellants thus being aggrieved are before

this Court in this appeal.

3. The brief facts are that the respondent herein was

appointed as a trainee in the appellants company. He

was allotted Personnel No. 00473470 and joined service

as Trainee Dozer Operator with effect from 27.02.1982.

Though the respondent claims that he had declared his

date of birth as 20.01.1955 in terms of the entry

contained in his matriculation certificate the fact remains

that his date of birth entered in the service record was

04.03.1950 and had remained so from the date of his

appointment on 27.02.1982 till his retirement on

31.03.2010. In the year 1998 the respondent has

submitted the Provident Fund Nomination Form wherein

he has indicted the details of his family and shown his

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wife as his nominee. In the relevant Form also, the

respondent had indicated his date of birth as 04.03.1950.

The respondent thus having continued in service till the

age of superannuation had retired from service on

31.03.2010. Just prior to his retirement, in the year

2009, a representation had been made by the respondent

seeking change of the date of birth entered in the records,

which was declined by the appellants. The respondent

not having agitated the matter further at that point of

time and having retired on 31.03.2010 has after the lapse

of four years filed the W.P.(S) No.6172/2014 before the

High Court of Jharkhand at Ranchi. The appellants

herein having appeared, filed their objection statement.

The learned Single Judge on taking into consideration the

nature of the claim put forth was of the view that when

the respondent raised the issue regarding correction of

the date of birth in the year 2009 the appellants secured

verification of the date of birth claimed by the

respondent from the Bihar School Examination Board,

Patna. On verification it was confirmed that the date of

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birth in the school records was 20.01.1955. The said

verification made by the appellants herein has been held

against them by the learned Single Judge and it was

observed that if the date 04.03.1950 as entered by the

respondent in the service records was correct, there was

no occasion for the appellants to verify the same from

Bihar School Examination Board. In that circumstance

the learned Single Judge being of the opinion that the

respondent had passed the matriculation prior to joining

the services and in that circumstance the entry of date of

birth in the matriculation certificate being 20.01.1955

even before joining the service, has accepted the

contention put forth by the respondent and in that

background arrived at the conclusion that the appellants

are to be directed to make appropriate corrections and

pass consequential orders.

4. The Division Bench has in fact referred to the said

reasoning adopted by the learned Single Judge relating to

the verification made relating to correctness of the

matriculation certificate from the Bihar School

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Examination Board and in that circumstance since the

learned Single Judge had also relied on the Full Bench

judgment of the Jharkhand High Court in the case of

Kamta Pandey vs. M/s BCCI & Ors. [2007 (3) JLJR 726]

has upheld the said reasoning assigned by the Learned

Single Judge. However, the Division Bench had taken

note that the respondent herein had filed the writ petition

four years after his retirement for restoration of his

employment. It has further taken note that the

respondent had filled up several forms in the course of

his services where the respondent had not disclosed his

educational qualification. In that view, the Division

Bench was of the opinion that the learned Single Judge

had not properly dealt with the aspect of delay in

approaching the Court. In that circumstance the Division

Bench had limited the attendant benefits payable to the

respondent to the salary for one year between the period

April, 2010 to March, 2011 as prevailing at that point. It

is in that background the appellants being aggrieved both

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by the order passed by the learned Single Judge as also

the Division Bench are before this Court in this appeal.

5. Heard Mr. K.M. Natraj leaned Additional Solicitor

General appearing for the appellants, Mr. M. Shoeb Alam

learned counsel for the respondent and perused the

appeal papers.

6. The fact that the respondent had joined the

services of the appellants on 01.03.1982 is the accepted

position. Though the respondent relies on the

matriculation certificate to indicate that the date of birth

stated therein is 20.01.1955, there is no material on

record to indicate that the said document had been

produced before the employer at the time of joining

employment. In that background, the service record

maintained by the appellants will disclose that the date of

birth indicated in the document is 04.03.1950 which had

been furnished by the respondent himself as the relevant

forms under his signature contain the said date. Though

the learned counsel for the respondent contended that

the High Court had noticed certain alteration of the date

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of birth as indicated in Form “B” the relevance of the said

document cannot be considered without reference to the

other documents in the service records. The very fact

that the respondent through his representation made in

the year 2009 was seeking for change of the entry

relating to date of birth will indicate that what was

contained in the service records is 04.03.1950, which

was the position from 27.02.1982.

7. In the above background it is to be noticed as to

whether the consideration as made by the High Court is

justified. The learned counsel for the respondent with

specific reference to para 10 in the order of the learned

Single Judge referred to the aspect wherein the learned

Single Judge has taken note of the representation made

by the respondent in the year 2009 and the verification

that was secured by the appellants from the Bihar School

Examination Board. Though such reference is made, in

our opinion, the same was not appropriate in the present

facts when three decades had elapsed from the date of

employment. The position is well established that if a

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particular date of birth is entered in the service register, a

change sought cannot be entertained at the fag end of

service after accepting the same to be correct during

entire service. In the instant facts the position is that the

respondent entered service on 01.03.1982. The date of

birth entered as 04.03.1950 has remained on record from

the said date. The requirement to submit the nomination

form indicating the particulars of the family and the

nominee was complied and it was submitted by the

respondent on 25.05.1998. In the said Nomination Form

the date of birth of the employee was required to be

mentioned, wherein the respondent in his own

handwriting has indicated the date of birth as

04.03.1950. Apart from that fact, the learned Additional

Solicitor General would also point out that since there

was a change in the method of maintaining the service

register, all the employees were provided an opportunity

to verify and seek for change in the service record in the

year 1987. At that stage also the respondent did not seek

for any change. Therefore, in that circumstance, when

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the opportunity available at the first instance in 1987

had not been availed and thereafter on 25.05.1998 when

the respondent himself in the Provident Fund Nomination

Form had indicated the date of birth as 04.03.1950

which corresponds to the date of birth entered in the

service register as on the date of commencement of the

employment, merely because a verification was made

from the Bihar School Examination Board and even if it

was confirmed that the date of birth was 20.01.1955

such change at that stage was not permissible.

8. This Court has consistently held that the request

for change of the date of birth in the service records at

the fag end of service is not sustainable. The learned

Additional Solicitor General has in that regard relied on

the decision in the case of State of Maharashtra and

Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010)

14 SCC 423 wherein a series of the earlier decisions of

this Court were taken note and was held as hereunder:

“16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC

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465 : 2006 SCC (L&S) 96] . In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7)

“7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. … According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for

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correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.”

9. This Court in fact has also held that even if there is

good evidence to establish that the recorded date of birth

is erroneous, the correction cannot be claimed as a

matter of right. In that regard, in State of M.P. vs.

Premlal Shrivas, (2011) 9 SCC 664 it is held as

hereunder;

“8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep

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over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.”

10. The learned Additional Solicitor General has also

relied upon the decision of this Court in the case of

Factory Manager Kirloskar Brothers Ltd. vs.

Laxman in SLP (C) Nos.25922593/2018 dated

25.04.2019 wherein the belated claim was not

entertained. Further reliance is also placed on the

decision of this Court in the case of M/s Eastern

Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors.

in C.A.No.7724 of 2011 dated 27.05.2019 wherein this

Court has held as hereunder:

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“Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.

The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier.”

11. The learned counsel for the respondent, on the

other hand, has relied upon the decision of this Court

relating the very same employer namely, the appellants

herein in the case of Bharat Coking Coal Ltd. & Ors.

vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein

this Court with reference to the earlier decisions of this

Court has upheld the order of the High Court wherein a

direction had been issued to effect the change in the date

of birth. Having perused the same we are of the opinion

that the said decision cannot render assistance to the

respondent herein. This is for the reason that in the said

case it was taken note that in 1987 on implementation

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of the National Coal Wage Agreement (iii) was put into

operation for stabilising the service records of the

employees and all its employees were provided a chance

to identify and rectify the discrepancies in the service

records by providing them a nomination form containing

details of their service records. In the cited case the

respondent (employee) therein had noticed the

inconsistencies in the records regarding his date of birth,

date of appointment, father’s name and permanent

address and availed the opportunity to seek correction.

Though he had sought for the correction of the errors, the

other discrepancies were set right but the date of birth

and the date of appointment had however remained

unchanged and it is in that view the employee had again

raised a dispute regarding the same and the judicial

remedy was sought wherein the benefit was extended to

him.

12. On the other hand, in the instant case, as on the

date of joining and as also in the year 1987 when the

respondent had an opportunity to fill up the Nomination

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Form and rectify the defect if any, he had indicated the

date of birth as 04.03.1950 and had further reiterated

the same when Provident Fund Nomination Form was

filled in 1998. It is only after more than 30 years from

the date of his joining service, for the first time in the

year 2009 he had made the representation. Further the

respondent did not avail the judicial remedy immediately

thereafter, before retirement. Instead, the respondent

retired from service on 31.03.2010 and even thereafter

the writ petition was filed only in the year 2014, after four

years from the date of his retirement. In that

circumstance, the indulgence shown to the respondent

by the High Court was not justified.

13. Hence, the order dated 13.10.2017 passed by the

learned Single Judge in WP(S) No.6172 of 2014 and the

order dated 19.02.2019 passed by the Division Bench in

LPA No.115 of 2018 are not sustainable.

14. In the result, the impugned order is set aside and

the appeal is allowed with no order as to costs. Pending

applications if any, shall also stand disposed of.

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………….…………….J. (R. BANUMATHI)

.……………………….J. (A.S. BOPANNA)

New Delhi, February 05, 2020

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M/S BHARAT COKING COAL LIMITED Vs SHYAM KISHORE SINGH

M/S BHARAT COKING COAL LIMITED Vs SHYAM KISHORE SINGH

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